Moody v. Daggett – Oral Argument – October 12, 1976

Media for Moody v. Daggett

Audio Transcription for Opinion Announcement – November 15, 1976 in Moody v. Daggett

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Warren E. Burger:

We will here arguments next in 6632 Moody against Dagget.

Mrs. Bamberger, you may proceed when you are ready.

Thank you Your Honor.

Mr. Chief Justice and May it Please the Court, this case comes here upon a written Certiorari to the United States Court of Appeals for the Tenth Circuit raising the question of whether a federal parolee, who violates his parole by the commission of the new crime is constitutionally entitled to a due process revocation proceeding.

Early during the service of the intervening sets, two questions must be analyzed, the source or nature of the interest and the process, which is due if there is an interest.

As the fact in the case will reveal, such a hearing in this case will determine how much of the almost six years due on the petition is first sentence will be served concurrently, with his present sentence and thus will effect his ultimate release date from custody all together.

Do you suggest that there is some expectation, a basis for an expectation or it would be — allowed to be concurrent.

Phylis Skloot Bamberger:

Your Honor, under this scheme, let us step back a minute and say that he is in fact still on parole.

His parole has not been revoked; it has not been taken away from him.

Warren E. Burger:

Well, we can hypothesize that, but the fact is, he is in another prison through the commission of another crime while he was on probation while he was on parole.

Phylis Skloot Bamberger:

Yes Your Honor, the scheme of the rules under which this case takes place of the parole board and visions that there is indeed a good likelihood or a possibility of concurrency and in fact in Jones against Johnson decided by the DC Circuit in — notes a survey taken by the Federal Parole Board, which would indicate that one in three of such parolees do in fact serve their sentence concurrently or have to detain and revoked all together.

William H. Rehnquist:

How does that work out in fact Mrs. Bamberger, would you explain that to us, how the concurrency comes about?

Phylis Skloot Bamberger:

Yes Your Honor, under the rules as they applied in this case and those rules are no longer in effect because of the new statute and the new rules.

The board would review a file, the parole board file and we know that the file consisted of the pre-sentence report, the case agents report, the information, which the supervising parole officer had obtained during the period of parole.

At the end of that review the board could give one of three dispositions.

It could revoke; it could remove the detainer all together.

In that situation, the parolee would get full concurrency with the present sentence and in fact he would be restored to the position that he would have been in, had the warrant never been issued that is, he would get street time, he would get good time and his sentences would in essence be running at the same time.

William H. Rehnquist:

When you say full concurrency that means that the time that he would be serving under his first sentence begins to run again.

Phylis Skloot Bamberger:

It would have, yes; it would have lost no time back to the date of his release in fact.

Now, the other — the second disposition, which the board could have made, is to revoke parole.

Now, that is where we get into the question and the real possibility which would come up in a case such as this, from the moment of the board’s decision to revoke parole, this sentence would start to run, would commence to run concurrently, with the new sentence.

In other words the issuance of the warrant stopped the time on the first sentence from running.

When the board gives its review and makes a decision to execute the warrant in essence to revoke parole, from that moment onto the board’s regulation, the time commences to run again and it is in fact running concurrently, with the new term and so he is actually serving the two sentences at the same time and his release date on the first sentence will obviously be shortened because he is serving that sentence.

Now, the third disposition, the one which took place here is to have the file review and to do nothing.

To let detect the warrant and the detainer’s stand.

In that situation it is automatic under the board’s prior rules and under the present rule that the first sentence will be served consecutively to the new sentence so, that when he is released from the second sentence and returned to the Federal Institution he then recommences that first sentence and he has to serve it.

Now, he maybe released on parole at some point later on but, he still either in custody or in parole custody.

Thurgood Marshall:

I thought he could — at that later step beheld to have served a concurrent way.

Phylis Skloot Bamberger:

Your Honor that get to the question of Retroactive Concurrency in other words at the time?.

Thurgood Marshall:

How is that possible?

Phylis Skloot Bamberger:

No, I do not believe that it is possible under the Boards rule.

There is no provision either under the old rules or under the new rules.

For the Board to make the sentence run back to an earlier point in time.

If the board does not give its hearing at an earlier date during the service of the intervening sentence it looses the power to make that term run back to a certain date.

I think that the crux of the matter here is that, he or at least one of them, one of the liberty interest?..

Thurgood Marshall:

The court couldn’t release him?.

Phylis Skloot Bamberger:

The board?.

Thurgood Marshall:

It could not release him.

Phylis Skloot Bamberger:

They could reparole him or well at that point they could several things.

They could remove the detainer all together so, that he would get full concurrency.

Now, in a situation where a parolee has committed a new crime that?.

Thurgood Marshall:

I am talking about after her served his first sentence.

Phylis Skloot Bamberger:

They could removed the detainer and the one and the detainer altogether.

That would put him back in a position that he would remain at the date of his first release he would get fore credit for all that time from the date of his release to the date of Board decision, which may in fact.

Thurgood Marshall:

I thought you said that is what they could not do?

Phylis Skloot Bamberger:

They cannot give him partial retroactive concurrency.

In other words, if a man is released from parole January 1 and he finish and he violates and he is sentenced to a new sentence and he serves that sentence and he is released on January 1 of the following year.

At that point, he gets a parole revocation hearing.

The parole board unless it totally lists the detainer cannot make his term run again from the first January 1.

It cannot make his term run from say from March 1 or April 1.

Thurgood Marshall:

But it can lift the retainer.

Phylis Skloot Bamberger:

It can lift it altogether.

But, that eliminate from the board its third option which is to let the sentence run concurrently from some intermediate point during the intervening sentence.

Harry A. Blackmun:

Let me see if I follow your deal.

Are you saying that the board may not Board in and credit time served?

Phylis Skloot Bamberger:

Not if it revokes, no.

Now, if it revokes during the period of the intervening sentences from that moment say, in March 1 of this January 1 sentence.

The first term will continue to run as of March 1 so he will get 10 months credit on his on old sentence.

He will loose the first two months of credit if the Board revokes altogether — I am sorry if the Board lifts the warrant altogether then he will get full years.

What the Board cannot do at the end of the intervening sentence is to make the term run concurrently from some retroactively to some intermediate date.

Phylis Skloot Bamberger:

It could give him the full term but not at partial term of credit.

John Paul Stevens:

But Mrs. Bamberger may it not do this substantially the equivalent thing by deciding to the parole on somewhat earlier than they otherwise would have paroled him.

Phylis Skloot Bamberger:

Well, by then he lose — the revocation causes him to lose — the answer to that is not the same thing because he is still in parole custody as oppose to having complete freedom.

John Paul Stevens:

Correct and he could be released incarceration in earlier date than he otherwise would.

Phylis Skloot Bamberger:

Yes, but there cannot be any doubt about.

The Board could do that in its discretion but there is no doubt about the fact that total freedom is better than the conditional freedom of parole.

John Paul Stevens:

Could the problem, this problem you describe be cured by an amendment to the Board Regulations to give them little broader discretion at that point.

Phylis Skloot Bamberger:

You mean to give him partial?

John Paul Stevens:

Give them power to allow partial?

Phylis Skloot Bamberger:

Partial retroactive, it could but they there is still another problem.

John Paul Stevens:

Well then before you get on the other one let me clear up another thing that troubled me.

You pointed out that if there were total revocation — if there revocation immediately upon conviction of the state crime that then the sentences under present Regulations would be served concurrently.

That’s the benefit of your client laws.

Phylis Skloot Bamberger:

That is right.

John Paul Stevens:

But we should decide the case for you it is not possible the board would adopt new regulation which would change that and make it the normal practice to make the sentence be consecutive rather than concurrent.

Phylis Skloot Bamberger:

Oh yes, if — and assuming — and in fact there are several states that do that it is interesting that two of the amicus (ph) in this case require that sentence run consecutively.

There is no discretion in the board one way or the other, the sentence is must run consecutively.

In that case there is no deprivation of liberty as opposed to having a liberty interest and yes the board could do that and..

John Paul Stevens:

So that your liberty claim really is contingent if I understand you correctly and the present form of the board regulations the board could revise their regulations in a way that would defeat the liberty interest which you assert.

Phylis Skloot Bamberger:

It could not defeat liberty interest but it could make the denial of that liberty interest not in a essence of denial it could make it harmless, yes that’s right.

Except that there is a another sight to this liberty interest and that is, when a person is in an institution with a parole detainer lodged against him, the board is in effect imposing conditions of parole it has modified the conditions of parole because of the affect of that parole detainer upon the prison conditions.

Now this is not the argument that was rejected in Meachum and Montayne although we do present that argument in our briefing, we believe that under the Bureau of Prisons Regulation there is an interest in the conditions that a prisoner has in an institution.

John Paul Stevens:

Mrs. Bamberger on that point would you help me because it is a kind of settled point but is there a difference in terms of the conditions of confinement between having a detainer lodged against a man or any alternative having no detainer, but having the fact noted of recorded that he was convicted of a state crime.

Phylis Skloot Bamberger:

Oh yes, there is a difference and in fact two states which again signs the amicus brief, direct they lodge the detainer so that the confining prison will have notice that there is another preceding pending and then they lift the detainer with a notice to the confining institution that the detainer is not to have any effect on the conditions of confinement.

Now as a Bureau of Prisons Regulations cited in our brief indicate there is consideration separately of the facts, of the new crime and the fact of the detainer being present.

The reason is two fold, number one the bureau prison considers in making it is classification study both the length of total confinement.

Now where there is a detainer pending the length of total confinement can be much longer because he may have to serve the parole sentence and the parole board has in essence notified not only that it wants to take this man back, but that he may have to serve a very long sentence or some sentence at the end of the intervening sentence.

The other thing that the Bureau of Prisons considers in this classification study is whether the individual can sustain himself in a position of relatively unsupervised or degree of supervision that he is required.

Now if the detainer is present it is an indication to the Bureau of Prisons, that there was something wrong with the parolees ability to structure himself without constant watching and that also goes into the classification study, what institution he will be in, what jobs will be available to him whether he will be on minimum or maximum custody in that institution so that yes the detainer does have a definite and separate impact aside from the fact of the new crime on the classification now?

Warren E. Burger:

Is it possible Mrs. Bamberger that the conduct of the prisoner in prison under the second sentence for whatever period he is there would have some bearing on the parole board’s exercise or discretion as to whether or not they ought to then and require him to serve all of the balance of his first sentence?

Phylis Skloot Bamberger:

Yes and that are what the government’s argument but the answer to that I think..

Warren E. Burger:

Why should they — that would be compelling to make the decision before they know what his conduct is.

Phylis Skloot Bamberger:

I think the answer is as follows because the decision making process as far as the board is concerned includes much more than just the institutional conduct.

The institutional conduct will always be there for them to review on documents that are presented by the institution periodical, but the board is also concerned with his life out in the community while he was out on parole, the full parole board file which includes FBI report, correspondence from various people and the facts of the new crime now…

Warren E. Burger:

Are not you overlooking the fact that they have already determined that he has committed a criminal act and there is full due process, a judgment of a court that he has violated his conditions of his parole.

Phylis Skloot Bamberger:

Your Honor that gets right to the question of the nature of this right that the Federal?

Warren E. Burger:

Of which right?

Phylis Skloot Bamberger:

Of the parolee’s right.

The federal parole scheme requires a two-stage process exactly like the one outlined in Morrissey.

There is the determination of whether or not there has been a violation and in this case that is out of the picture, but this also the disposition aspect of the case.

The board has an obligation to make a disposition it is not required to make any particular disposition, it is not required to revoke and this gets back to an earlier question that was asked, if the board were required to revoke on the basis of a new conviction, then he would not have any claim, conviction would eliminate his interest in conditional freedom which was provided by the grant of parole.

Warren E. Burger:

Perhaps the Board’s position might be that we don’t want to make the decision on whether we revoke the parole until we see how he conducts himself in this second round under his second conviction, that is if during that second period his conduct is such that he has denied all his good time credits if he engages in prison riots and violence, I suppose you agree that the parole board would not be very sympathetic with having his sentences run concurrently.

Phylis Skloot Bamberger:

Well let me answer that by saying that the board can consider an early hearing, all of the non-institutional factors related to medication.

Now, now, yes, get to you — if they make the decision and is unfavorable to the parolee, during the term of his institution, the board has the right to reopen based on information it receives I think from the institution so that it can reconsider an adverse decision to the parolee, based on institutional conduct.

Now, if they render a favorable decision to the parolee and he is granted paroles, so he can serve a dual status, which he is recognized in the parole scheme, he can be serving the second sentence and on parole with respect to the first sentence, the board can in essence revoke the parole that it had granted him, based on his prison conduct.

So, the board is not left without a remedy either looking to the favorable or adverse institutional conduct.

Now, the question is to whether or not, this reconsideration of the case has to have an in court appearance the due process requirements of such a review proceeding is not before the court, but the board is not precluded even by its own rules it never has been, from considering institutional conduct.

In the first situation under the rules which applied at the time this case came up it did by an annual review — under the board’s present statute, they can always reopen and always reconsider information which is presented to them.

So, I think that the argument that the institutional conduct has to be considered is correct, but it does not go far enough.

Because what we have to do is we have to freeze the mitigating circumstances that would come up with respect to the life in the community and the factors of the new crime.

Now, the question of mitigation of course goes to what process is due under the circumstance.

What is the interest, what is the private interest of the parolee in presenting his mitigating circumstances and I think that that is where that factor comes up.

If a parolee has committed a new crime, the board can consider that it also can consider its full record.

But at the time of this record review, the parolee is not allowed to be present, he does not know, what is in the parole, what file, because until the present statute and the possible applicability of their right to privacy act proficiency, had no disclosure of the file.

Now, we do not know what the file indicates in this case, but the government has indicated from the facts it has presented that there are certain mitigating circumstances, for instance.

In this case, the Judge could have sentenced the defendants up to life imprisonment, he did not, he gave him two consecutive terms of custody — I am sorry, two concurrent terms of custody of only up to ten years.

Although he is discretion to impose a life sentence, was presents He also made the sentence run under 4208A2, which meant that the parole board could parole him on the second crime at any point it decides.

Obviously the judge believed that they was something there which did not require the full extent of his sentencing power.

Now, the government appendix includes a document from the parole board files, and it is interesting because that document in itself contains information which is not confirmed, which we do not know is error.

For instance, it indicates, that he murdered his wife, in fact that was not the crime that he was convicted of, he was convicted of voluntary man slaughter in the heat of passion.

Phylis Skloot Bamberger:

Now, we do not know what those facts are, it’s not reflected in the record, nor in the documents which the government chooses to add as part of its appendix.

It reflects that there was a conflict as to his family.

The report indicates that his family had alcoholic problems.

He indicates that he had a good family relationship.

Now in terms of whether or not to provoke parole, where the parolee will live is obviously an important consideration.

There is a very critical dispute of fact here, which should have been resolved that is, in a situation where the parolee could present his mitigating circumstances.

Now the government argues that they were no mitigating circumstances presented here.

I think, the fact is due impart, number one to the possibility, which is reflected in the record that Mr. Petitioner did not know that he could submit mitigating circumstances.

He was never told that and the documents submitted by the board established that fact.

The second factor of course is the same as in Goldberg is that he might not have known how to do it or what was relevant or what to put before the court because he had no representation, no one who could assist him in that and then as another matter he never knew the basis for the board’s decision to make his sentence run consecutively because they never told him what factors they were considering and the reasons for their decision to make the sentence run consecutively.

So, the absence of mitigating circumstances here, should not be held against the petitioner and in fact the record as presented by the government indicates that there maybe substantial disputes of fact and the board should have known both sides of the story in an amply presented argument on behalf of the petitioner.

Now, if the government argues that its total discretion to revoke the parole after a new crime eliminates liberty and eliminates the parole status which he still presently enjoys the answer ti think is that both Gagnant and Morrissey and Goldsmith and Roth dispute that argument.

They lay it to rest.

Gagnant and Morrissey both say that we have here there is a vested interest which he still has both the state and the parolee have an interest in accurate fact finding and in informed used of discretion.

The citation in Roth to Goldsmith indicates that the board’s discretionary power must be construed to mean an exercise of discretion after investigation, notice hearing an opportunity to respond.

None of that was afforded here.

Now, the remedy that would be afforded the petitioner in this instance would be first if the Court would define that there was not an interest and we are also to find that is protected by due process.

The first remedy would be to remand to the District Court to determine whether or not he lost any mitigating evidence due to the substantial delay between 1971 in this time in granting the time of hearing.

If that were not true, if he had not lost any mitigating evidence then he would be entitled to a parole revocation under the new statute.

Now it is not necessary for the court to consider the new statute, if we were to find that the old proceedings were invalid because the new statute affords the petitioner certain due process rights, which may indeed satisfy Morrissey depending upon how the board or the commission now chooses to enforce its new rules.

First it provides them with counsel, second it may provide him with disclosure of the full file, third the board may find that under its regulations it can provide notice of the reasons and the facts underlying its decision and its own regulations require notice of the underlying charges and the reason and Arbitron (ph) procedures.

So that I think, if we find that the old procedures were invalid that the new ones should be given an opportunity to be used in this situation to determine whether or not it provides with due process.

William H. Rehnquist:

Well, why is this still a live case, Mrs. Bamberger, if new rules have been substituted for the ones that you are litigating?

Phylis Skloot Bamberger:

It is still a live case because the petitioner here is not eligible for hearing under the new rules because there is a provision in the statute, which says that any valid order of the parole board shall not be reopened or reconsidered under the new statute.

So that unless the old procedures are deemed invalid which we believe they are because there is an interest, there is a present interest as Roth defines it and the old procedures did not adequately protect that interest then he would be entitled to a new proceeding to determine whether or not his parole should be revoked to determine whether or not he should get concurrent sentences and to determine whether or not as the board has the option to do, to leave the detainer in effect.

William H. Rehnquist:

If the court rules against him then he would not have the advantage of the new rule, if the court rules against your constitutional convention content, he could not go back and say well now, I want a hearing under the new rules.

Phylis Skloot Bamberger:

That’s right, the only thing that could happen is that the board could periodically, review the institutional reports and perhaps revise its decision based on those reports, but it wouldn?t reconsider the mitigating factors with respect to his life on parole, with respect to the crime and other factors which he may choose to introduce.

I would like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Easterbrook.

Frank H. Easterbrook:

Mr. Chief Justice and may it please the court.

Frank H. Easterbrook:

The claim of a right to an immediate oral parole hearing in this case has an air of impossibility to it.

Petitioner is not now suffering imprisonment on account of his parole violations.

No one proposes to revoke his parole now. He suffers no loss of freedom now because of the possibility of revocation a year from now when his sentences for murder and man slaughter will come to an end.

His loss is caused by his intervening convictions and ten-year sentence.

The possibility of revocation eventually is not caused by the detainer lodged against him.

It was caused by the intervening convictions upon his plea of guilty.

Petitioner has had a full hearing on the question of his guilt and the murder convictions establish a full foundation for the eventual revocation of parole, if that is what the Parole Commission decides to do.

In the sentencing hearing on his two convictions, he had both the opportunity and the incentive to bring forward any mitigating evidence he might have that might induce either the sentencing judge or the Parole Commission to treat him leniently.

Petitioner has met with a social worker in Federal Prison and refused even to discuss with a social worker any mitigating conditions or circumstances.

He told the social worker that all the information was in his file.

That statement appears at page 26A if the appendix are brief.

To this day, petitioner has not said what he wants to say in an immediate oral dispositional hearing, let alone what he wants to say that can not be conveyed equally well on paper.

He has made no claim that would, if true, induce the Parole Commission to revoke his parole and to let the revocation run concurrently.

I would evoke my argument to three propositions.

First, that no hearing is necessary at any time once the violations of the conditions of parole have been established as they were here beyond dispute.

Second, that the time for an oral hearing if one is required, does not arrive until the end of the intervening sentence when the Parole Commission decides to revoke a petitioner’s parole.

Third, that if something is required before that time, the Parole Commission’s dispositional review procedure provides ample safeguards against error.

The due process clause requires a hearing concerning the revocation of petitioner’s parole in this case; only if petitioner has a liberty interest or a property interest in continuing to be a parolee.

We think that there is no liberty of property interest in a case like this one.

Petitioner doubtless has an interest in a constitutional sentence held in common with his other men in being free from imprisonment until by a judgment of a court of confident jurisdiction it has been decided that he must surrender that interest for a period of years.

That interest was extinguished for a period of ten years by his 1962 conviction for rape.

Petitioner served a little more than four years of that before being released on parole and that release on parole restored to him a form of conditional liberty, parole, created by statute, the terms and conditions and extent of which were defined entirely by statute.

This new conditional liberty is a creature of statute and petitioner has no more of it than the statute provides.

The Federal Statutes and Regulations provide for termination of this conditional liberty if the parolee commits another crime that happened here.

Once that happens, every fact necessary to revoke parole has been established.

The decision whether to revoke parole in response to those facts is committed to the discretion of the Parole Commission.

Let me make it clear that we have no dispute with Morrissey’s holding that a grant of parole sets up a legitimate claim of entitlement that can be revoked only upon provision of due process.

What this means though is that before revoking parole, the responsible officials must determine by a procedure comporting with the due process clause, that the conditions of the parole have been violated.

John Paul Stevens:

Mr. Easterbrook can I just ask you right at that point, is it your view that Morrissey does not apply to any case in which the parolee admits the fact, justifying revocation.

Frank H. Easterbrook:

Yes, Your Honor that is our view, it is our view in some that once the facts justifying the revocation have been established, those facts, forfeit the claim of entitlement to remain free and once that claim of entitlement can no longer be setup against the parole authorities, there is no remaining liberty or property interest.

Frank H. Easterbrook:

Petitioner is pleaded guilty to second-degree murder and to voluntary man slaughter two violations of the terms of his parole.

No more is required; those convictions ended his legitimate claim of entitlement to retain his statutory liberty interest.

John Paul Stevens:

Mr. Esterbrook I do not have the Morrissey opinion in front of me, but I have a recollection of there being discussion of the double need for fair procedure, one, to establish the fact of violation and another on the dispositional phase.

Frank H. Easterbrook:

That is right Your Honor, there are two discussions of that sort in Morrissey, one discussion appearing at page 490 of the Morrissey opinion, says, “If it is determined that petitioners admitted violations to the parole board and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter.”

That has happened here, there have been two convictions of guilty, it is clear that those convictions are reasonable grounds for revoking parole, when we think that ends the matter.

But Morrissey went on the say, that it would be useful to have a parole hearing and this is at page 488.

For the purpose of determining whether the parole board should exercise discretion.

We have no dispute with that either, the relevant federal statutes, both at the time of the consideration of petitioner’s case and now, provide for two hearings.

One is an alternate hearing before parole is revoked and one is the dispositional review which may or may not include a hearing depending upon whether the Parole Commission believes that one is necessary.

So, we have no dispute with a proposition that it is useful to have a hearing to determine how the discretion shall be exercised.

The question whether the constitution requires that hearing is we think left open in Morrissey because in Morrissey the fact of violation itself was disputed and the question whether the constitution required hearing in the absence of such a dispute was not before the court.

John Paul Stevens:

How is that question different from the question you have in any criminal case where you have first the determination of guilt where clearly there must be due process applied and then a subsequent discretionary hearing before the judges to what sentence you will be imposed.

I take it that she does require fair procedure at sentence hearing, why is the situation different?

Frank H. Easterbrook:

There is one way in which it is different and one way in which it is the same Your Honor, the way in which it is different is that that is part of the criminal process and it is directly controlled by the Sixth Amendment.

This Court held in (Inaudible), the counsel was required to do the sentencing hearing basing its holding entirely on the Sixth Amendment.

But the court held in Morrissey and Gagnant that the Sixth Amendment does not apply to parole revocation hearings and to parole proceedings.

John Paul Stevens:

But, are you saying, putting the Sixth Amendment to one side for a moment — are you saying that the due process clause has no application to a sentencing hearing and a criminal proceeding.

Frank H. Easterbrook:

We are saying that the due process clause has no application Your Honor.

John Paul Stevens:

Do the same proceeding (Voice Overlap) criminal trial.

Frank H. Easterbrook:

That is right Your honor, the court held inspect against Paterson, a case that cited and discussed in our brief, that there is no need of a sentencing hearing conducted by state authorities to allow the accused to be heard or to present evidence.

It is our view that that is the same here, once it is been established, beyond doubt that there has been a violation as here.

There is no need to allow the accused to be present or to present evidence.

John Paul Stevens:

What is the underlying theory that there is no, he has no — this is not going to have any depravation of his liberty as a result of his sentencing hearing, how do you analytically pick that in?

Frank H. Easterbrook:

The analytical theory I think is that the legitimate claim of entitlement to remain free the liberty interest.

John Paul Stevens:

I am talking about the criminal proceeding that is gone once he is found guilt?

Frank H. Easterbrook:

He is gone once he is found guilty.

John Paul Stevens:

He has an insufficient interest in whether the sentence is for ten days or for life to justify due process.

Frank H. Easterbrook:

His interest in the range of sentences is protected by the statute establishing the range of permissible sentences and of course in the federal system, I would like to point out that there is no arbitrary procedure in the federal system.

The congress has provided for procedures that go in our view well beyond what the constitution requires.

Thurgood Marshall:

What about it could get probation?

Frank H. Easterbrook:

In a federal system, yes he could your honor.

Thurgood Marshall:

So, I mean either he has his liberty or not?

Frank H. Easterbrook:

The federal system allows a broad range of alternatives from suspended sentence to a sentence the maximum under the statute.

The question whether that is provided is entirely committed to the discretion of the judge.

That proposition is supported by the Druzinski (ph) in 418 U.S. in which the court held not even a statement of reasons is required for what the Judge does and that there is no way under the present constitution and statutes to inquire into what the judge has done unless congress provides explicitly that, that should be done.

Thurgood Marshall:

You mean that a judge could be arbitrary in sentencing?

You mean a judge could say that everybody coming here with red hair, I give ten years and those who do not have red hair I will probate.

Frank H. Easterbrook:

Your Honor, that raises a question of a different sort, that is the question of the reliance on an impermissible reason.

Thurgood Marshall:

But you said that need (Inaudible).

Frank H. Easterbrook:

In our view if there is no reason, then the judge have whole discretion and the Parole Commission has whole discussion, let me setup contrast between two cases..

Thurgood Marshall:

This shows that, that the record shows you never gave any reason, but the record show that he had sentenced 40 people, 20 redheads and 20 non redheads each redhead had gotten 20 years and each non redhaed had been paroled.

You would not any thing wrong with that.

Frank H. Easterbrook:

Yes, Your Honor we would and we would find some thing wrong in the reliance on an impermissible and irrelevant reason, but the question whether it permissible to rely on irrelevant or impermissible reason is different from the question whether there must be an oral hearing to determine whether such consideration have added the process.

Let me offer as an example; ElRod against Burns, the case decided last spring and which the court held that employees who held their positions in Illinois, at discretion of their employer.

No statutory safe guards, no property interest in there employment, could not be discharged for reasons based on their political believes.

That was use of an improper reason, yet at the same time the employees in ElRod Against Burns were in the same position as the Employees and Board of Regents against Roth, they could be discharged for any reason, without they need for a hearing.

John Paul Stevens:

Mr. Easterbrook, but there is a big differences between that and the question Mr. Justice Marshall asked in Elrod against Burns they allegedly were discharged for constitutionally impermissible reason, namely they exercised the Free Speech Right, he said there is no constitution right to be a redhead.

Frank H. Easterbrook:

It might be suggested Your Honor, that you have very little choice in being a redhead at birth.

John Paul Stevens:

No, but the constitution is neutral on the point, it is completely independent of any constitutional claim.

Frank H. Easterbrook:

I think the point is the same Your Honor, though that a claim that a decision has been made for impressible reason is very different form a claim that a decision has been made without notice and an opportunity for an oral hearing and that it is not necessary to have a hearing in every case in order to minimize or avoid the possibility of reliance on an improper reason.

Thurgood Marshall:

How long in the British Common Law and this law in the United State has it been since a Judge asked do you have any think to say before I pay a sentence on you, how long has that been going on.

Frank H. Easterbrook:

Your Honor, in some states the right of allocution is not now allowed.

Thurgood Marshall:

How long has that been growing on in the British Common Law?

Frank H. Easterbrook:

In the Federal System it has been going on as long as I know.

Thurgood Marshall:

Well that is good enough.

Frank H. Easterbrook:

And it is provided by the rules of criminal procedure.

Thurgood Marshall:

Alright just waste of time.

Lewis F. Powell, Jr.:

Mr. Easterbrook are not you really arguing the (Inaudible) law that you have to argue it, to sustain the government’s position.

Frank H. Easterbrook:

I am.

Lewis F. Powell, Jr.:

Mr. Easterbrook you have ten minutes that I would suggest.

Frank H. Easterbrook:

I am about to turn to over little bit less ambitious argument, second point is that if a hearing is required, it is not required now, more as he indicated as I discussed in response to Mr. Justice Stevens’s questions, but the hearing would be helpful to determine whether the authority should exercise discretion to revoke parole.

In the federal system a hearing is provided at the end of the intervening sentences murder?

John Paul Stevens:

I hate to interrupt as you get to the heart of your argument but your directed my attention to Page 488, and you just used the term that the opinion suggested that the hearing would be useful, but as I read the sentence the parolee must have an opportunity to be heard and to show if can that he did not violate the condition or if he did that the circumstances and mitigation suggest that the violation does not revocation.

They must language applies to both consideration.

Frank H. Easterbrook:

To the extend them must clause applies the both consideration it is inconsistent with the language on page 490 of the same opinion indicating that if it were established there would have been a violation?

John Paul Stevens:

do you think the language on Page 480 is constituently inaccurate?

Frank H. Easterbrook:

It is inaccurate in light of language on Page 490, Your Honor.

John Paul Stevens:

But I just want to be sure I understood your position.

Frank H. Easterbrook:

Yes, that is our position, petitioner is not now subjected to imprisonment as a parole violator.

His imprisonment is justified by the ten-year sentence imposed in 1971, for murder and manslaughter.

Morrissey held and this time a quote another sentence on page 488 of the same opinion, that the right time for the hearing was “a reasonable time after the parolee is taken into custody.”

Petitioner has not yet been taken into custody as a parole violator. So, the time set by the court for a hearing has not yet arrived.

Several reasons support the decision of Congress to defer hearings until the expiration of the intervening sentence.

Revocation is the rule and earlier hearings will be useless in most cases.

The hearing at the end of the intervening sentence is the best time because then, the Parole Commission has available to it all of the information about the parolee’s institutional behavior and can answer the question, should the prisoner now be released?

It will have access to the parolee’s prison record and it will avoid the inconvenience of sending teams of examiners to prisons to make recommendations that will in every case or almost every case have to be reconsidered at the end of the intervening sentence.

A hearing could be required years before the ultimate decision on revocation only if the detainer affected liberty of property rights in some way.

As we understand that this is the core of petitioner’s argument.

Petitioner has suggested a number of ways in which that might happen.

The detainer might affect the conditions for confinement on the intervening sentence, the delay might jeopardize the opportunity for concurrent service of the term or the delay might permit the laws of mitigating evidence.

We submit that the argument about affect on the conditions of confinement must yield to this Court’s decision in Meachum against Fano, which held it when prison officials have descretioned to choose the place and conditions of confining, the due process clause does not require particular procedures to be used in making that choice.

The choice itself does not involve a legitimate claim of entitlement.

In the Federal Prison System it is true as petitioner contends that the officials know whether there has been a detainer and in many cases they consider whether that detainer should have any effect on their decisions.

But, the fact that a detainer has been considered is known from the fact in Meachum that the prison officials considered whether the prisoners there had committed arson or had been alleged to commit arson or might commit arson.

The question is not whether particular facts have been considered in making the decision.

The question is whether there is a duty to respond to those facts in particular ways that is whether there is a legitimate claim of entitlement to have particular conditions of confinement.

There is none in the Federal Prison System.

Petitioner has not contended that there is and we submit that there is no liberty or property interest from that source.

Second source, the one with which petitioner opened the argument.

If the argument that opportunities for concurrent revocation, concurrent service of the revoked term will be lost.

Frank H. Easterbrook:

We submit that that argument is simply fallacious.

It is fallacious as matter of fact and it doesn’t help petitioner even if it’s true.

First, because of the dispositional review that is now provided, the warrant can be dismissed and the detainer released with or without an oral hearing.

The absence of an oral hearing does not prevent concurrent service of the term.

But more importantly, after the intervening sentence has expired, the commission has a number of options available to it, each of which will achieve in practice, the equivalent of concurrent service.

First, the commission can decide simply not to revoke parole, to withdraw the warrant, to treat it as if it that never existed, that achieves concurrent service in practice.

It can decide to revoke and grant immediate reparole and that is provided by section 4214 D5 of the Parole Commission Act.

This has much of the same effect, but we understand that petitioner’s objection to the revocation and the immediate reparole is that it will extend the length of the time as a parolee and that there are some ancillary restrictions during that extent of time.

The Parole Commission has a statutory device to deal with that.

Section 4211 of the new Parole Commission Act says that the commission can on its own motion terminated supervision over the parolee at any time so that although his time as a parolee might be extended by a revocation and immediate reparole, the commission has the discretion under 4211 to terminate that supervision achieving concurrency or partial concurrency, retroactively.

William H. Rehnquist:

Mr. Easterbrook you refer to the new parole act, I understood it was your opponent’s contention that the new parole act didn’t have any application to this case because her client was not able to take advantage of it, if the old procedures were constitutional.

Frank H. Easterbrook:

The new act both applies and does not apply to this case.

Under the new act, it is not possible for petitioner to seek a reopening of decisions that were already made under the old procedures.

But the question whether petitioner will be released on parole after the end of his convictions for murder and manslaughter will be decided by procedures under the new parole act and that’s why we are relying on the provisions of the new parole act to show what options the commission will have that is disposal when a year from now petitioner is released from his current sentence by virtue of good time.

William H. Rehnquist:

So when you have refer to a provision of the new parole act in your argument you are referring to a provision that would have some applicability in your view to the petitioner.

Frank H. Easterbrook:

Yes it would Your Honor.

The commission’s next option is an option set up by 28CFR2.5C2 which we reprint at page 19(a) to the appendix to our brief.

It says that the commission can revoke but “may” decide to forfeit the intervening time served before enduring in the intervening conviction.

Commission interprets this as allowing partial concurrent revocation reiteratively and I don’t think that there is any reason to be worried about petitioner’s argument that the Parole Commission does not have that option when the Parole Commission itself believes that it does and will act though it does.

Warren E. Burger:

Well it could allow both either partial or total concerns could it not?

Frank H. Easterbrook:

Yes it could.

Warren E. Burger:

It could allow total concerns by simply a decision that they would not revoke parole at all.

Frank H. Easterbrook:

That’s correct your honor.

Warren E. Burger:

That might be even eliminate the seconds hearing.

Frank H. Easterbrook:

They would probably have a second hearing to determine which of the courses they would follow and that would be a full oral adversarial hearing.

Warren E. Burger:

But under Morrissey which will no longer be applicable as it will be superseded at least by the new act, When this occurs, under the Morrissey the first preliminary hearing might result in a determination not to have a second hearing at all, would it not.

Frank H. Easterbrook:

It might, if it were to determine, that there was no probable cause.

Warren E. Burger:

Hypothetically, they might have got to the wrong man the person with the same name or that the violation of parole was so minimal that if wasn’t significant.

Frank H. Easterbrook:

That’s right your honor.

In this case petitioner would be on much sounded ground asking for an immediate oral hearing, if petitioner were contending that he was not the person who was convicted of murder and manslaughter 1971 in Arizona.

Frank H. Easterbrook:

But that argument has never been made.

Finally petitioner has an argument that mitigating evidence might be lost in interim and that this will effect the Commission’s ultimate decision, but petitioner has never contended that he has any such evidence.

His habeas corpus pleading on the District Court in this case contended that the reason for requiring and prompt hearing was to have the opportunity for concurrent service of the revoked sentence.

Moreover the commission has rules that will allow him to have an oral hearing, if he were to make persuasive claim that he has mitigating evidence, that it might effect the decision and that it might be lost, but petitioner has never made a claim of that sort either in his pleadings or at any later stage and the claim that evidence might dissipate in some cases is we submit not enough to require in oral hearing in every case.

Even in cases decided under the Speedy Trial Clause of the Sixth Amendment in which dissipation of the evidence and in which the possibility of prejudice to defense is oppressing if not overriding concern.

The possibility that evidence would dissipate is not sufficient.

Dissipation of the evidence prejudiced to the defense is a matter of proof at very minimum it is a matter of claim and its not sufficient to require hearing in every case that there might be prejudice in some cases, if that happens there will time enough to correct it when it occurs.

Finally I turn to petitioners argument, that the procedures now used by the Parole Commission are inadequate to guard against these kinds of intervening losses, the loss of possibility of concurrent revocation, the loss of mitigating evidence doing the interim and so on.

We think that the argument has little to recommend it , commission conducts a full file review sets an oral hearing, wherever it appears the one would be useful.

Petitioner’s argument those quickly boils down to the argument that there must be a hearing in every case even when it does not seem likely to serve a useful purpose in a particular case.

We start in this regard from the proposition that if parolee is convicted of another crime while on parole then revocation of parole to begin after the intervening sentence is the ordinary disposition, the Parole Commissions rule so provide and that is rule 2.47C which we reprinted at page 13(a) of our brief.

What the commission does is establish a file review and essentially require the parolee to bare the initial burden of showing that he should receive exceptional treatment and that an oral hearing as opposed to a paper file review, is necessary in order to determine whether they are so.

We think that there can be no doubt that that comports with the Due Process Cause, even to the extent something is required in the interim.

The interest involved for parolee are slight as I have pointed out the fact of incarceration itself is not a state because that was determined for the 1971 murder conviction.

The Parole Commission has ample discretion to allow concurrent revocation, retroactively or partial concurrent revocation and it is unlikely for someone who has been convicted of murder will show that he is entitled to exceptional treatment, but putting that aside its clear that whatever procedures the Parole Commission may use their is no chance of an erroneous decision.

The possibility of error was distinguished by the conviction for murder.

John Paul Stevens:

Mr. Easterbrook may I just raise a question, you may answered it but I want to be sure I understand your answer.

One of their arguments as I gathered is that under existing rules if there had been an immediate revocation hearing and presumably there would have been revocation, then the sentences would have been required to run concurrently and he has automatically lost that benefit by the delay.

Frank H. Easterbrook:

Your Honor, that is not true.

That question was raised in Zerbst against Kidwell, the decision at 304 U.S. which is cited in our brief, an identical argument was made in this Court unanimously rejected it.

After a prompt intervening hearing there is no need for concurrent revocation.

Potter Stewart:

I understand Justice Steven question would be quite that whether or not there was a need for, but whether or not in fact that is what happens.

Frank H. Easterbrook:

Your Honor, it is not in fact what happens.

My understanding and we have been informed by the Parole Commission is that when an oral depositional hearing is held during intervening conviction, during the term for the intervening conviction the usual disposition is to make no deposition.

The commission takes the evidence that the parolee has to offer and makes no decision.

In some cases it makes a decision to lift the warrant and to lift the detainer, in other cases it makes the decision to revoke concurrently on the spot, but in most cases it makes no decision at all and the court that has discussed this problem most thoroughly, the Court of Appeals in Jones against Johnston has concluded that there is no constitutional or statutory obstacle to having the hearing and making no decision and we believe this is what is the commission would continue to do.

John Paul Stevens:

I answered the question I want to be sure I have, assuming that they do have a prompt hearing and make prompt decision to revoke then your opponent says that the rules provide that in that eventuality the sentence will be concurrent.

Is your opponent correct or not.

Frank H. Easterbrook:

My opponent is not correct, Your Honor.

They can make a prompt decision to revoke and at the same time make the decision that the revocation will begin after the conclusion of the intervening sentence.

John Paul Stevens:

So, revocation will begin or this —

Frank H. Easterbrook:

That the time served as a parole violator would begin after the intervening sentence.

The last point I want to make is the point that it is usually thought that Due Process Procedures are necessary to prevent or to reduce the risk of erroneous decision making.

That is the typology this Court setup in Mathews against Eldridge but in a case like this we think, there is no possibility of erroneous decision making, an exercise of discretion maybe unwise and maybe uninformed, and not be erroneous.

Thurgood Marshall:

What would happen if the man had been pardoned.

Frank H. Easterbrook:

Excuse me Your Honor. If this man —

Thurgood Marshall:

What would happen if the man had been pardoned and that nobody notified the board, that would have been a mistake then.

Frank H. Easterbrook:

Yes your honor it might have?..

Thurgood Marshall:

So you cannot be sure that no way they are mistaken.

Frank H. Easterbrook:

Your honor, there is no way that the possibility of error can be excluded on supposition of that sort.

But as the court said in Mathews against Eldridge, the possibility that kind of remote possibility of error in a few cases is not sufficient to call for hearings in every case.

Thank you very much.

We submit that the judgment should be affirmed.

Warren E. Burger:

Thank you Mr. Easterbrook.

Mrs. Bamberger, do have a something more.

Phylis Skloot Bamberger:

Yes, Your Honor.

Warren E. Burger:

You have five minutes.

Phylis Skloot Bamberger:

The government refers to its new regulation to say, that they can give partial retroactive concurrency.

I think the government misconstrues the words of the regulation.

If not the intent it relates to (Inaudible) under the statute, a parolee who violates by anything but a new conviction or a new crime is entitled to receive credit for the time that he has served while on parole.

The exception is for a parolee who violates the parole by the commission of the new crime.

He loses his (Inaudible) time and that Section relates directly to the loss of (Inaudible).

The question of retroactive concurrency, partial retroactive concurrency I think is answered by 4214 D which is the relief provision of the new statute which applies to the hearing which is granted at the end of the intervening sentence and it lists five dispositions which the board might make at a hearing granted at that time and partial retroactive concurrency, is not one of them.

The board’s own regulation section 2.52 does not include that as a possible remedy.

I think the government misconstrues the decision in Zerbst.

In Zerbst the petitioners were requesting that the parole board must make the sentences run concurrently.

We are not urging that they must do so, we are urging that they — in the situation where they may do so, there must be a Due Process proceeding, because the board must — because that is a liberty interest which he currently possesses.

Now, I think…

Warren E. Burger:

I hope that Due Process hearing occur when, as and if the parole is revoked.

Phylis Skloot Bamberger:

Not at the end Your Honor, hearing will occur at the end, but he will be harmed because of the affect of the detainer, because of the modification of the parole conditions, which results from the detainer, while he is in the institution and from the loss of concurrency.

Phylis Skloot Bamberger:

Now, getting to the government’s interpretation..

Warren E. Burger:

Perhaps it will cleared, perhaps the action will result in its being concurrent, how can you predict that?

Phylis Skloot Bamberger:

Well, the government’s position is that the total withdrawal of the detainer and the warrant at the end of the intervening sentence, where the new crime is serious is not likely to occur.

But what is more likely to occur is the possibility of concurrency where the violated does not get everything but he gets something and the inability to give the partial retroactive concurrency deprives the parolee of that intermediate dispositional aspect which the commission can grant.

I think the government misconstrues that line in Morrissey and Gagnon which, Morrissey which relies on.

That section relates to those jurisdictions in which there is no discretion where there is a violation of parole not to revoke, in other words as in Tennessee, where the sentences must be served concurrently on a finding of violation, that sentence in Morrissey would apply, that would not need to give a hearing on the dispositional aspect of the case.

But where there is a discretion, Morrissey in no fewer than three places at 480, 484, 488 and at Gagnon in 411 and 790 say, that where there is this discretion, the hearing must be given and it is interesting to know that in Gagnon, the violation was admitted by the parolee.

He said, he had committed the burglary and so, the court with that fact still viewed the dual aspect of the process very important.

Warren E. Burger:

Has he not admitted it here?

Phylis Skloot Bamberger:

Oh, yes, we are not disputing that he has admitted it, but we are saying that even where he admits it, the dispositional phase is still critical and the government attempts to distinguish Morrissey and Gagnon, saying that they do not apply where the parolee has admitted the violation.

They are hardly distinguishable if that fact existed in those very cases.

The government asserts here that we urge that an oral hearing is required.

Now, it is all position that the old board’s rule which did not provide for notice, disclosure of the file, any kind of representation or any statement of the facts or reasons does not comport with Morrissey.

If the court finds that is true, then the parolee in this case, the petitioner would be entitled to a new hearing at the present time.

Now, under the new rules, he would be entitled to more than, what he had been entitled to then and it is all position that perhaps in some situations, an oral hearing would not be required, but that this is not a decision which the court must make now.

Warren E. Burger:

Thank you, the case is submitted.